ASP Briefings

The African Critique

Introduction

The Rome Statute is the treaty that established the International Criminal Court (ICC). Article 12 of the Rome Statute provides that the ICC exercises jurisdiction on crimes committed on the territory or by the nationals of states parties to the court.[1] Article 13 provides that the Court exercises jurisdiction when a situation is referred to the Prosecutor by a State Party, by the Security Council, and where the Prosecutor has initiated an investigation by his own initiative. In accordance with this, the ICC has so far investigated ten situations. The situations in Uganda, Democratic Republic of the Congo, Central African Republic, and Mali have been referred by the states themselves. The Security Council referred the situations in Darfur, Sudan and Libya. The situations in Kenya, Cote D’Ivoire, and Georgia have been opened by the prosecutor’s own initiative.

Out of the 124 member states of the ICC, 34 are African.[2] African states were at the forefront of pushing for the creation of the ICC and were among the earliest to ratify the Rome Statute which established the ICC.[3] Recently, however, the peaceful relationship between Africa and the ICC has taken a different course.

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Core Criticisms

There are a number of different critical points that are raised by African states. The purpose of this paper is to summarize the core criticisms that are raised and to explain what lies underneath. The paper does not discuss the merits of the critique as such, and the points raised in contravention: this is important too, of course, but beyond the scope of this submission.

First, there is the criticism that the ICC inappropriately targets Africa and African leaders.[4] Of the ten situations and cases under investigation, critics point that the ICC so far has only prosecuted situations and cases in Africa. Currently, with the exception of Georgia, all situations and cases under investigation are from Africa. All four persons who have thus far been convicted by the Court are Africans. All 32 who have been charged by the Prosecutor are also African.

Second, critics argue that powerful states use the ICC and the imagery of international criminal justice as a political instrument. These states refuse to join themselves and use their power in for instance the Security Council to prevent prosecutions of themselves or their allies. As a consequence, these critics experience that there is an image that it is only/mostly Africans that are committing international crimes. And that other states and an international external institution that needs to “help” Africans by bringing justice, comparable to how that was experienced in the colonial era. This has led to an increasing sense and depiction by African leaders of the ICC as a “neo-colonialist instrument” or “racist vehicle.”[5]

Third, the critique asserts that the ICC is mistaken in claiming that international law no longer provides head of state immunity to leaders for prosecutions of allegedly committing international crimes during their term in office. Article 27 of the Rome Statute provides that the official capacity of a person indicted will not be a bar to prosecution. However, this does not apply to non-state parties, such as President Bashir of Sudan. It could be argued, however, that the UNSC referral of the Darfur situation extended the reach of the ICC Statute, including its Article 27, over Sudan.[6] Moreover, and more fundamentally, there is also the argument, that is not accepted by the vast majority but is nevertheless raised by others, that foreign and ICC prosecution of a leader while in office is as such a violation of customary international law and state sovereignty, even for states that signed up to the ICC. And that customary international law provides that this is only possible if the state concerned waives the immunity of its leader. The AU has adopted resolutions that reflect this position. On Oct. 12, 2013, the AU made a decision at its extraordinary summit that no criminal charges can be brought against a sitting head of state or government.[7] In June 2014, at its 23 ordinary session in Malabo, Equatorial Guinea, the AU adopted an amendment to the Protocol on the Statute of the African Court of Justice and Human Rights to merge the African Court on Human and People’s Rights and the African Court of Justice.[8] Article 46A Bis of the Protocol on Amendments provides immunity for serving heads of state and senior government officials.[9] This received a lot of critique from mostly Western commentators that this undermines the fight for impunity. A proposal to exempt heads of states from prosecution has been presented to the Assembly of States Parties to the Rome Statute.[10]

Fourth, it is also brought against the ICC that its proceedings violate the principle of complementarity.[11] The argument here is that requests by African states to allow them to address their own situations through their own domestic courts,[12] or even to support them doing so, were rejected or ignored. This has been experienced as an undermining of the sovereignty of African states and as unhelpful in addressing the justice needs of the affected community, it is asserted. The ICC has, however, also declared the Al Senussi case inadmissible because Libya were conducting their own domestic prosecution. However, according to the critique, the Court should be more willing to allow domestic prosecutions in general and more actively assist such domestic prosecutions where it can rather than engage in an adversarial relation with domestic judicial authorities, where possible.

Fifth, the AU and others claim that intervention by the ICC can have an adverse effect on peace negotiations between parties to a conflict. As a result, the AU’s Peace and Security Council (PSC) requested deferral of the Darfur situation referred by the UN Security Council by claiming that the approval of the arrest warrant could undermine the ongoing efforts aimed at facilitating the resolution of the conflict.[13]

Sixth, there is also a number of different diplomatic fights on cooperation between the ICC on the one hand and a number of state parties on the other. According to the ICC, these states are violating their obligations to cooperate, or are even undermining the Court. Examples are the situation with Kenya, which the ICC referred to the ASP, and the welcoming of President Bashir of Sudan despite the ICC’s arrest warrant against him, which the ICC referred to the UN Security Council.

Origins of the Critique

Tensions between the ICC and African states increased after the ICC’s decision to issue an arrest warrant for Sudan’s president Omar Hassen Al Bashir on March 2009. Although Sudan is not a party to the Rome Statute, the situation in Darfur was referred to the ICC by the UN Security Council in March 2005. This was the first arrest warrant that was issued by the ICC for a sitting head of state. Sudan criticized the ICC as a “neo-colonialist” and “anti-African instrument.”[14] In the context of Darfur, the AU’s PSC criticized the indictment as an obstacle to the progress of peace in Darfur. In addition, the AU’s PSC requested the UN Security Council to exercise its powers under Article 16 of the Rome Statute to defer the indictment and arrest of Al Bashir.[15] The UN Security Council refused to do so, which prompted the AU to adopt a resolution calling for the African states not to cooperate with the ICC in arresting Al Bashir on July 3, 2009 at the 13th Annual Summit in Sirte, Libya.[16] So far, eight states parties to the Rome Statute have since welcomed Bashir on their territory and refused to arrest him.[17]

The tension further escalated when the ICC’s pre-trial chamber authorized the Prosecutor’s request to investigate the 2007 election violence in Kenya in March 2010. This led to the indictments of, among others, former opponents Kenyatta and Ruto who, as a protest against the ICC, joined forces and got elected as President and Vice President of Kenya. The ICC trials of Kenya’s leaders spurred the AU to hold an extraordinary summit in October 2013 in Ethiopia. Subsequently, the AU requested a deferral of investigations and prosecutions in the situations of Sudan and Kenya. In June 2015, the AU established an Open-ended Ministerial Committee of Ministers of Foreign Affairs on the ICC to ensure that the decisions of the Assembly of the AU concerning the ICC are implemented. Moreover, the idea of mass withdrawal from the Rome Statute has been discussed by African states under the auspices of the AU and a number of states have started the withdrawal process recently.

Although much of the critique can be understood as political maneuvering to protect state sovereignty from outside interference, and in some cases to provide immunity to violent dictators, it is too simplistic to reject the critique. The ICC and its supporters make a valid argument that i) the ICC has been unable to prosecute elsewhere due to its limited jurisdiction, ii) that those situations that it investigated and prosecuted were situations of truly heinous crimes, iii) that these states were not themselves prosecuting, and iv) many states even referred their situations themselves. However, those making the critique submit that the way that international criminal justice functions, within the reality of geo-political considerations and limited jurisdiction and resources, still produces an image as if it would only be Africans that commit international crimes, and that it is only Africans that require outside help to address those crimes. And it is this image, or perception, that is experienced as reminiscent and reinforcing of colonial and racist relations between the West and Africa.

Deeper causes to the critique lie also in the reality that an international criminal trial of a small number of perpetrators cannot address the magnitude and complexity of the situation at hand, and thus can only modestly contribute to peace and justice rather than deliver it, as is also often the unhelpful image and expectations that is raised with regard to the ICC. As a consequence, the important additional transitional justice mechanisms that also address justice needs of victims and society are often marginalized or never occur. This is not something that the ICC can necessarily help, as it is a criminal court of law and by its nature and essence thus approaches a situation as such. However, because there are broader justice needs than the ICC is able to offer and limited abilities to otherwise remedy, the result is that the expectations are raised beyond what the ICC can do and disappointment the consequence, leading to discontent with the ICC and the international community at large.

Moreover, the functioning of the ICC and international community often fails to be sufficiently bottom-up. As ASP President Kaba noted in his address at the ASP’s 15th Session on Friday 18 November 2016, justice comes from below and cannot be handed top-down. This is inherently difficult, all sides recognize, but since calls for justice are the raison d’être of the ICC, as Kaba noted, it is important to keep working on how the ICC can function as best possible to allow their important contribution to meet those justice needs.

Addressing mass violence and contributing to peace and justice for the affected communities is an extremely important but also complicated process. It is therefore not surprising that the efforts to do so are far from perfect and raise critique. This critique is therefore not necessarily “African” as also the Netherlands noted in their submission on Friday 18 November. It has to do with the challenge that justice is not something that can be externally provided in a top-down one-size-fits-all-manner but at the same time usually welcomes the ICC’s or otherwise criminal trials as helpful contribution to these justice needs, which for organizational reasons to certain extent functions top-down and structured according to certain external rules. This is a paradox within which a careful balance need to be found, together with all involved. Moreover, it is important to understand that one court in The Hague with limited jurisdiction and resources is limited in its abilities to function differently and address victims’ justice needs fully. Therefore, rather than ignoring or denying and explaining exclusively how important the ICC is, the Assembly of States Parties (ASP) would serve the ICC best by taking the critique seriously, analyze how to address concerns, and find and build on the common ground all state parties have to address international crimes. This has also been the course that Chief Prosecutor Bensouda, the ICC’s Registrar Von Hebel and ASP President Kaba have taken during the 15th Session of the ASP and creates a more constructive and open environment in which there is space to search for ways to find common ground and solutions.

Recent Developments

In the Fifteenth Session of the ASP, state party cooperation with the ICC is widely debated. Moreover, on 11 July 2016, the Pre-Trial Chamber II of the ICC referred to the ASP the non-cooperation of Republics of Uganda and Djibouti to arrest and surrender President Al Bashir to the ICC.

The criticisms and tensions between the ICC and Africa will continue in the foreseeable future. Burundi, South Africa and Gambia have recently announced that they will withdraw from the ICC and have taken steps thereto. South Africa for instance argued that the ICC is blocking peace processes by its position on head of state immunity and Gambia announced that it withdraws from the ICC because the ICC is targeting people of color.[18] However, while these states are taking steps to leave the ICC, many other African states are using their diplomatic power to persuade states to stay, Gabon recently referred their own election violence to the ICC, and Mali and Niger cooperated recently with the ICC in the prosecution of Al Mahdi for destroying cultural heritage in Mali.

Most strikingly, the current and ongoing 15th Session of the ASP has seen a very critical yet constructive and open tone and discussion on these issues. While some states still express one or the other polarized positions (rejecting the ICC as “racist vehicle” or denying that the critique holds any merit), most states accept that there are concerns that need to be listened to. This has led for instance South Africa to strike a different tone in their submissions, submitting that they will take the 12-month period that it takes before their withdrawal would become final as a period in which they will work within the ASP structure to find solutions. In his address to the ASP on 18 November, President Kaba has been very clear in recognizing the critique and calling upon states to not withdraw from the ICC and use the ASP to work towards an ICC that better addresses the concerns that are raised and thereby strengthen its support and functioning.

To support this effort further, The Netherlands and PILPG are co-hosting a side event on Tuesday 22 November, 13:15-14:45 (in Everest 1&2) to address what underlies the critique and, on that basis, what this means on how to move forward, concretely, to regain support and legitimacy of the Court. The Representative of the African Union, the Office of the Prosecutor, an important voice of African civil society, and researchers of this topic will share their views on a roundtable panel. The event specifically invites others to join this discussion and share their view, to engage constructively on how to move towards strengthening the Court’s legitimacy and effectivity in doing its important work to contribute to the justice needs of those affected by mass violence.

Footnotes:

[1] Rome Statute of International Criminal Court, art. 12, July 17, 1998, U.N. Doc. A/CONF.183/9, available at: http://legal.un.org/icc/statute/romefra.htm.

[2] Assembly of states parties to International Criminal Court , The States Parties to the Rome Statute, available at : https://asp.icccpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.asp.

[3] Sanji M. Monageng, Africa and The International Criminal Court: Then and Now, in AFRICA AND THE INTERNATIONAL CRIMINAL LAW, 13-20 (Gerhard Werle, Lovell Fernandez, and Moritz Vormbaum, eds.)

[4] Mary Kimani, Pursuit of justice or Western plot? International indictments stir angry debate in Africa, AFRICA RENEWAL, Oct. 2009, available at http://www.un.org/en/africarenewal/vol23no3/233-icc.html.

[5] W Douglas Smith, The International Criminal Court: The Long Arm of Neocolonialism? INTERNATIONAL AFFAIRS REVIEW, Nov. 1, 2009, available at http://www.iar-gwu.org/node/87.

[6] Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE, 2009 7 (2), p. 333 – 352, available at http://jicj.oxfordjournals.org/content/7/2/333.full.pdf+html.

[7] Extraordinary Session of the Assembly of the African Union, 12 October 2013, Addis Ababa, Ethiopia

[8] International Justice Resource Center, African Union Approves Immunity for Government Officials in Amendment to African Court of Justice and Human Rights’ Statute,

[9] Draft Protocol on Amendments to The Protocol on The Statute of The African Court of Justice and Human Rights, available at: www.iccnow.org/documents/African_Court_Protocol_-_July_2014.pdf

[10] UN depositary notification C.N.1026. 2013.TREATIES-XVIII.10 of 14 March 2014 (Proposal of amendments by Kenya to the Statute)

[11] M. deGuzman, Margaret, Is the ICC Targeting Africa Inappropriately? available at http://iccforum.com/africa.

[12] See The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi Situation, Case No. ICC-01/11-01/11-344-Red, Judgment,( May 13, 2013), available at : https://www.icc-cpi.int/pages/record.aspx?uri=1599307., The Prosecutor v. William Samoei Ruto, et al., Case N. ICC-01/09-01/11-307, Judgment (Aug. 30, 2011), available at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/09-01/11-307.

[13] Peace and Security Council Communique, para. 9, PSC/MIN/Comm(CXLII), (Jul. 21, 2008), available at http://www.iccnow.org/documents/AU_142-communique-eng.pdf.

[14] Zihag Liu, The Prosecutor vs. Omar al-Bashir, INTERNATIONAL POLICY DIGEST, Oct. 31, 2016, available at http://intpolicydigest.org/2016/10/31/the-prosecutor-vs-omar-al-bashir/.

[15] See footnote 12.

[16] Mia Swart and Karin Krisch, Irreconcilable Differences? An Analysis of the Standoff between the African Union and the International Criminal Court, African Journal of International Criminal Justice, 0 (2014), available at http://www.elevenjournals.com/tijdschrift/AJ/2014/0/AJ_2352-068X_2014_001_000_003.

[17] See footnote 13.

[18] ALJAZEERA, Gambia withdraws from International Criminal Court, Oct. 26, 2016, available at: http://www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188.html.

Side Event: “Justice in Kenya after the International Criminal Court” (hosted by OSJI and the International Commission of Jurists – Kenya (ICJ-Kenya)

Overview by Rosalie Dieleman, Research Associate PILPG-NL

Speakers:

1. Nelly Warega, Chair Panelist, ICJ-Kenya

2. Fergal Gaynor, Victim’s representative in Kenyatta

3. Njonjo Mue, ICJ-Kenya

4. Jaqueline Mutere, Victim of Kenya’s PEV

 
Highlights:

• Jaqueline Mutere expressed her disappointment in ICC’s failure to prosecute Kenyan perpetrators of sexual violence, noting that, if the ICC is unable to prosecute, who would dare to do it in Kenya?

• Ferghal Gaynor criticized the Kenyan government for obstructing justice, and emphasized that the victims have been failed by both the justice processes in Kenya and before the ICC.

• Njonjo Mue noted that there was a clear pattern in domestic efforts to prosecute: whenever the ICC was increasing its efforts for making a case, domestic efforts rose, so as to implicate that the ICC was not acting in accordance with the complementarity principle.

• Nelly Warega called upon the government with the statement that, if the state is indeed willing to investigate and prosecute, it should be as simple as cooperating with civil society.

This event, centered around justice in Kenya after the collapse of the cases at the ICC, involved four speakers: Jaqueline Mutere, as a representative for the victims of the sexual violence after the 2007 elections, Ferghal Gaynor, who was the legal counsel in the Kenyatta case, Njonjo Mue as a representative of Kenyans for Peace with Truth and Justice, and Nelly Warega, who works at the Kenyan office for the International Commission of Jurists.

Jaqueline, a victim and survivor of the sexual violence, opened the debate by telling her story and that of many other women who have experienced the same. She explained that many women who had been raped, conceived and gave birth to children from the men who had raped them, and many had contracted diseases as a consequence of rape. These women often did not receive the help they needed, and their children were often neglected. Jaqueline visited many of these women and attempted to help them, by creating a platform to talk about it, and set up a group for these victims. Jaqueline explained that what is needed most by these women, is recognition within their country and of the president of what has happened to them. Victims of sexual violence often go overlooked in the Kenyan society. As some of the offenders were in positions of power or governmental service, such as the police, many of the women were not even able to report the crimes that had been committed to them. Jaqueline expressed her disappointment in the failure to prosecute by the ICC, noting that, if the ICC is unable to prosecute, who would dare to do it in Kenya?

Ferghal Gaynor described his work with victims in the Kenyatta trial and explained how hopeful many Kenyans were with regards to a prosecution at the ICC, even though they expected the government to interfere with the investigation and proceedings. According to Gaynor, the victims were also aware of bribery and intimidation of witnesses in the Ruto case. Ferghal Gaynor made strong statements concerning efforts of the Kenyan government to obstruct justice, and emphasized that the victims have been failed by both the justice processes in Kenya and before the ICC. Aside from criticizing the Kenyan government, he also pointed out issues on the side of the ICC, such as the fact that the ICC did not want to put investigators in danger and therefore investigated under a low risk-tolerance. In addition, the ICC did not have the access to archival material that it needed, whereas according to Gaynor, the defense did receive access to these documents.

Njonjo Mue elaborated on the domestic options for prosecution, including the establishment of a special tribunal and the establishment of a special international crimes division in Kenya. The problem however, according to Mue, is the lack of political will for the prosecution of these crimes. A witness protection agency was set up as well, which is in principle a good institution, yet lacks adequate funding from the government and is therefore ineffective. Mue also noted that there was a clear pattern in domestic efforts to prosecute: whenever the ICC was increasing its efforts for making a case, domestic efforts rose, so as to implicate that the ICC was not acting in accordance with the complementarity principle.

Nelly Warega elaborated on the strategic litigation cases that civil society – including the International Commission of Jurists – filed against the government for failing to investigate and failing to protect. In the closed court sessions, all 8 victim petitioners have now gotten the chance to testify, along with experts such as psychological workers and personnel from the hospitals at which the women were treated. Warega called upon the government with the statement that, if the state is indeed willing to investigate and prosecute, it should be as simple as cooperating with civil society. Mue elaborated on this with regards to the impact of these strategic litigation processes for the victims, noting 6 points of impact. The first being a declaration of the rights of the victims; secondly, an acknowledgement of the suffering of the victims and the society in general; thirdly. a possible investigation and declaration of the truth about these events; fourthly, reparations might be awarded to victims; additionally, this could be a start of addressing systemic structural failures, such as in the police force; and lastly, it would help send a message to avoid recurrence.

After the speaker’s round, the public was allowed to engage with questions, which turned the event into a heated debate between civil society members, victims and representatives of the Kenyan government. Dr. Korir Sing’Oei, who is a Legal Advisor at the Executive Office of the Deputy President in Kenya, aside from expressing his regret over what happened to Jaqueline, strongly expressed his worry and disapproval of the “vilification” of Kenya by civil society in these forums. He pointed at all the work Kenya has done for victims during the post-election period, as well as the fact that there is more to be done and the fact that gender based violence issues have not received the attention they should have. He stressed the fact that Kenya is willing and able to prosecute, and that various cases of violence have been prosecuted already under domestic law Florence Kajuju, member of the Kenyan parliament, expressed that she felt for Jaqueline and that there is much more to be done for victims. She did express however that she thought it wrong to “ignore what the government has done, and to condemn the government at the Assembly of States Parties”. She added that: “Kenya is doing its part”. The heated discussion continued for over an hour, which mostly consisted of the different parties throwing facts and figures on the table, which were subject to disputation and discussion, which lead to the event to conclude on a very bitter note.

Side Event: “National Jurisdictions in the front line of fighting impunity” (hosted by the EU Network for investigation and prosecution of genocide, crimes against humanity and war crimes)

Overview by Jill Baehring, Research Associate PILPG-NL

Highlights:

• Henrik Attorps, Senior Public Prosecutor of the International Public Prosecution Office in Sweden, suggested in terms of best practice a rather “educational approach” regarding trials under national jurisdiction, since the prosecutor needs to explain circumstantial issues to the judges and needs to put the offense in its proper context.

• Lars Büngener, Public Prosecutor, and Christian Ritscher, Federal Prosecutor, both from the War Crimes Unit at the Federal Public Prosecutor General in Germany, stressed that there was no statute of limitations for gross human rights violations such as war crimes, crimes against humanity and genocide. Thus, it may be necessary to initiate investigations decades after the crimes.

• Aurélia Devos, Head of the Specialized Unit for Crimes Against Humanity and War Crimes, Prosecution Office in Paris, France, identified the major challenges of her case as witness testimonies from Rwanda, including their transport and translations, as well as the immense public interest and the trial before a jury.

The side event was opened by moderator Matevz Pezdirc, Head of the Genocide Network Secretariat. He announced presentations by prosecutors from three European countries regarding cases of war crimes, genocide and crimes against humanity tried in these countries.

The first presentation was held by Henrik Attorps, Senior Public Prosecutor of the International Public Prosecution Office in Sweden. He had successfully tried the first case in Europe regarding the ongoing conflict in Syria. He pointed out that, besides the frustrations on the ongoing conflict, this was the first time that criminal proceedings were taken place while the conflict was still ongoing. He also emphasized the importance of social media in cases where access to the area is impossible, since valuable evidence can be obtained through them. His investigation has had to face many obstacles, such inaccessibility of the crime scene by the Swedish police and the initial difficulty to identify the victim. Besides these issues, it was possible to make a case since the suspect was easily identifiable through video evidence, and had the Swedish nationality. In terms of best practice, he suggested a rather “educational approach” regarding trials under national jurisdiction, since the prosecutor needs to explain circumstantial issues to the judges and needs to put the offense in its proper context.

Lars Büngener, Public Prosecutor, and Christian Ritscher, Federal Prosecutor, both from the War Crimes Unit at the Federal Public Prosecutor General in Germany, presented three current cases in Germany regarding war crimes and terrorism charges. They explained that their office has had a focus on African States such as the Democratic Republic of Congo or Rwanda, but that this focus has shifted to Iraq and Syria. The reason was that several Germans joined armed groups, which blurred the line between “traditional” terrorism and core international crimes, and that some refugees entering Germany are suspected war criminals. In Germany, the principle of universal jurisdiction is applicable regardless if there is a link to Germany. They furtherly stressed that there was no statute of limitations for gross human rights violations such as war crimes, crimes against humanity and genocide. Thus, it may be necessary to initiate investigations decades after the crimes.

Aurélia Devos, Head of the Specialized Unit for Crimes Against Humanity and War Crimes, Prosecution Office in Paris, France, presented the course of events as well as its challenges regarding the trial of a person from Rwanda suspected to have committed Genocide. The suspect had applied for refugee status and was then tried for the alleged crimes in Rwanda. She described the development of the case as difficult, since the suspect was first treated as an accomplice and then as a perpetrator. Additionally, the application of French law required Genocide to be committed in the course of a broader plan (policy element). Major challenges had been witness testimonies from Rwanda, including their transport and translations, as well as the immense public interest and the trial before a jury.

Richard Dicker, Director of the International Justice Program at Human Rights Watch, pointed out the important work of the government officials within their respective jurisdiction. He called their work a crucial component in the fight against impunity and the most serious crimes. He furtherly encouraged more intergovernmental cooperation, which he saw as a crucial addition to the work of individual investigate and prosecutorial efforts. He urged States Parties to take the example of the presentations.

Working Group on Amendments

Overview by Georgios Plevris, Research Associate PILPG-NL

Highlights:

• France and Germany’s proposal was to alter the Provisional Amendment as put forth by the ICC judges in order to address legitimacy concerns and strike a middle ground. To this, their proposal recommends the setting of one-judge court at the pre-trial chamber only.

• Other states marked their disagreement with the Frances and Germany’s joint proposal, supporting the provisional amendment by the ICC judges.

• Kenya asked from the Working Group and the ASP to request the judges to embargo the Provisional Amendment on Rule 165, or apply a moratorium in its use and application.

• The majority of the States Parties argued that the Provisional Amendments are in accordance with the Rome Statute, and in fact are an example of the Court responding to ASP requests for improvement in rules on judicial proceedings.

In its late session, after the 6th plenary of the 15th ASP, the Working Group on Amendments opened the debate on the Provisional Amendment to the Rule 165 of the Rules and Procedures and Evidence (RPE). The Rule 165 of RPE relates to the procedures for Article 70 offences against the administration of justice. In February 2016, in the context of the proceedings in Bemba et al., ICC judges provisionally amended the rule, in accordance with Article 51(3) of the Rome Statute. Under the proposed amendment, the number of judges needed at pre-trial and trial stage was reduced from three to one, and the number of judges needed at the appeal stage was reduced from five to three.

France and Germany restated their common proposal submitted before the Working Group, as a compromise between the concerns raised by Kenya and the arguments put forth by ICC judges. France and Germany’s proposal aims not at rejecting the Provisional Amendment as put forth by the ICC judges, but altering them to address legitimacy concerns and strike a middle ground. To this, their proposal recommends the setting of one-judge court at the pre-trial chamber only. Lastly, both countries recommended that the Working Group continue to discuss the matter, and that judges refrain from applying the rule till the ASP has made its decision

In particular, Kenya characterized this action by the judges as a procedural misstep, underlying that at the current moment Kenya is not ready to join any compromising position: “The hurdles that need to be jumped are too many and too high for Kenya at this moment” noted the Kenya Delegation. They proposed three main actions, including the Working Group on Amendments to remain seized of this matter, while consultations to commence at the earliest possible, preferably in New York. Additionally, Kenya asked from the Working Group and the ASP to request the judges to embargo the Provisional Amendment on Rule 165, or apply a moratorium in its use and application.

In contrast, Belgium, Australia, Netherlands, Switzerland, Argentina, Liechtenstein, UK and Chile all marked their disagreement with the Frances and Germany’s joint proposal, supporting the provisional amendment by the ICC judges. Australia found the joint Franco-German proposal to strip the substance of the Amendment aimed at increasing the efficiency of the Court. The majority of the States Parties argued that the Provisional Amendments are in accordance with the Rome Statute, and in fact are an example of the Court responding to ASP requests for improvement in rules on judicial proceedings. Liechtenstein reasoned that the interpretation of RPE is a matter of the Court and not of the ASP, while Chile underlined how the entire ICC judicial body stands behind these Amendments, which should be kept in mind during ASP discussions. Finally, the majority of States Parties called for the 15th Session of ASP to take a decision on the Amendments, but lacking such a decision, Rule 165 should apply.

Sixth Plenary Meeting of the ASP15 – Open Bureau Meeting: “Relationship between Africa and the ICC: Resuming dialogue to win the fight against Impunity”

Overview by Emma Bakkum, Rosalie Dieleman, Kim Ogonda, George Plevris, Research Associates PILPG-NL

Highlights:

• Almost all states expressed their gratitude for this opportunity of constructive and active dialogue and underlined their common values.

• Many states stressed – as in the previous sessions of the plenary debate – the fact that true open and constructive dialogue is necessary to resolve this issue.

• Burundi and many other states such as Venezuela, Tunisia and France, raised the issue of complementarity and reiterated that the ICC is a court of last resort.

• The role and relationship that the United Nations Security Council (UNSC) has with ICC was criticized in the statements of many State Parties.

• The perception of the ICC’s perceived bias towards the African continent was mentioned by several states.

The sixth ASP plenary meeting was an Open Bureau Meeting, discussing the relationship between Africa and the ICC against the backdrop of recent decisions to withdraw from the Rome Statute by Burundi, Gambia and South-Africa. The African Union, several member states, and some NGO’s concluded statements. Almost all states expressed their gratitude for this opportunity of constructive and active dialogue and underlined their common values (and commitment to the ICC in many cases). The NGO Kenyans for Peace with Truth and Justice started the meeting with mentioning three challenges facing the court that were reflected in many other statements as well: the role of the UNSC, the problems with head of state immunity relating to articles 27 and 98 of the Rome Statute, and the perceived bias and perception towards Africa.

South African critique
South Africa – stressing that it is one of the founding members of the Rome Statute – once again emphasized the problems it has encountered with regards to head of state immunity, relating to articles 27 and 98 of the Rome Statute. The emphasis in this statement was on the fact that the Court had not attempted to reach out and start a dialogue about this issue, according to South Africa the Court had put nothing to the table with regards to this commitment to dialogue. The statement did however end on a very constructive note. It was stressed that there is no reason for South Africa to celebrate its withdrawal from the Court, and that there is still a 12-month notice period in which it will be open to engagement in order to find solutions to this problem. Many other states stressed – as in the previous sessions of the plenary debate – the fact that true open and constructive dialogue is necessary to resolve this issue. Nigeria argued that the problems of the court can be resolved at a round table, and gave an example of Nigeria’s own experience where the Court and the Chief Prosecutor adequately reacted to misgivings that Nigeria had towards the ICC. New Zealand stated that it is open to all constructive dialogue, including convening a high-legal dialogue. The Canadian delegation added that they have come to this Assembly of State Parties to listen, where the UK expressed that they are ready to do “anything in their power” to solve the concerns of the African States. France gave several examples of how to strengthen dialogues, through the ASP, but also by organizing ad hoc sessions in response to the withdrawals. In addition, it called upon the ICC to make use of its existing channels and focus groups, and allow as many states as possible to participate in these discussions.

Complementarity 
Burundi mainly came forward in this discussion with critique with regards to how the ICC has applied the complementarity principle to Burundi. Burundi first stressed that their relationship with the ICC has always been a consistent one, and that it is very hard to speak at to the ASP after hearing how deplorable states find their decision to withdraw. They argued that the ICC has not given a lot of regard to the complementarity principle, and that the Court has made it difficult for Burundi to exercise its own rights with regard to investigation and prosecution. Burundi argued that the lack of a policy on the application of the complementarity principle, as well as the discriminatory nature in which the complementarity principle is applied, must be addressed. In addition to Burundi, many other states raised the issue of complementarity, such as Venezuela, Tunisia and France, who iterated that the ICC is a court of last resort. Botswana, additionally expressed that a focus on complementarity also requires a focus on strengthening national courts.

UN Security Council
The role and relationship that the United Nations Security Council (UNSC) has with ICC was heavily addressed in the statements of many State Parties. In particular, attention was paid to universality of the Rome Statute and the incompatibility of this principle when it comes to permanent members of Security Council, of which only 2 are party to the Rome Statute. This does not only create a self-evident problem for principles of justice and universality, but as Botswana and Australia noted, creates issues with regard to the referral power the Security Council has. How can the Security Council maintain powers of referral and deferral when three out of its five permanent members, and most powerful nations in the world, do not recognize and are not parties to the Court itself? Furthermore, the relationship of the UNSC and ICC has often created negative perceptions, of the latter being a political tool in the hands of the veto powers. Greece in its comments about the UNSC underlined the importance of the Court to avoid politicization. NGOs that addressed the plenary pointed out to the need for reform when it comes to the UNSC link to the ICC, while the President of the ASP 15th Session, in a passionate speech, took notice of the need for reflection and possible reform of the UNSC bond with the ICC, through amendments to the Rome Statute. The ASP should be the only proper mechanism to that end.

Perceived Bias
The perception of the ICC’s perceived bias towards the African continent was mentioned by several states. Italy for example, acknowledges the problem of African states who perceive the ICC as biased and selective. Italy is convinced that dialogue with countries that harbor negative perceptions must be actively pursued in an open, inclusive and transparent manner – as happened during this meeting – because it is important to truly understand the concerns. Italy moreover expressed that ”we have twelve months to re-launch and renew this dialogue”, which may reverse the States’ decisions to withdraw. Slovenia and Argentina both argued that one of the problems that the ICC faces is the negative perceptions about it, especially in public opinion and global media. Both states urge that a greater effort is made to create a better understanding of the court and its system. Brazil concluded that the misperception of bias and selectivity of the court is directly connected to a lack of universality.

Concrete proposals
Lastly, a few concrete proposals were put forward. Australia argued for this by saying that ”we should make use of the existing infrastructure to put forward concrete proposals”. Kenya, in line with this, expressed some concrete concerns it has, including subcontracted investigations and partisan intermediaries, which undermine the impartiality of the prosecutor and thus the court. In addition to possible ways of strengthening dialogue, France also suggested the option of creating an office of the ICC within the African Union.